Revue - Les Cahiers de l'Arbitrage N°1-2023 - 85

DOCTRINES - DÉBATS
is not conditional on a showing that the underlying arbitration agreement and arbitral
award are valid, as Spain contended. Rather, that question, the court rightly found,
goes to the merits of the enforcement action:
The assertion that a party lacked a legal basis to enter or invoke an arbitration
agreement is not a challenge to the jurisdictional fact of that agreement's
existence but rather a challenge to that agreement's arbitrability. 125
And that
assertion goes to arbitrability even if it contends that the ECT was not validly
applied. 126
...
" [T]he Court's role in enforcing an ICSID arbitral award is therefore exceptionally
limited. " [citing TECO Guatemala Holdings, LLC v. Republic of Guatemala, 414
F. Supp. 3d 94, 101 (D.D.C. 2109) ...] 127
...
For the reasons explained ..., the court finds that it has jurisdiction. And
neither party raises any reason to believe that the Award in this case is not
authentic, or that the court's enforcement order will not be able to successfully
track the Award's terms. That ends the court's inquiry; the Award must be
enforced. 128
The district court in Blasket Renewable, by contrast, ruled that it lacked
jurisdiction to enforce the award before it, on precisely the grounds advanced by
Spain, namely that both the agreement and award in that case were invalid under
Achmea and Komstroy, and that the FSIA's arbitration exception was therefore
inapplicable. Due to Spain's immunity from suit, the court dismissed the case at
the jurisdictional stage:
[Petitioners] contend that this Court has subject matter jurisdiction over this
case under the arbitration exception to the FSIA. ... I disagree. A petitioner
seeking to confirm an arbitral award must establish three " jurisdictional facts "
to establish jurisdiction: an agreement to arbitrate; an arbitral award; and a
treaty governing the award. ... Petitioners have made that initial showing ....
Thus the " burden shift[s] to [Spain] to demonstrate by a preponderance of the
evidence that the [ECT] and the notice to arbitrate did not constitute a valid
arbitration agreement between the parties. " [citing Chevron Corp. v. Ecuador,
795 F.3d 200, 204, 205 (D.C. Cir. 2015)]. ... Because Spain has established by
125. The term " arbitrability " is used differently in the U.S. than in virtually the rest of the world.
Elsewhere, a claim is arbitrable if the applicable law allows it to be arbitrated (and non-arbitrable
if it does not.). It has no broader meaning than that. In the U.S., however, an arbitrable claim is
essentially one that a tribunal has jurisdiction to adjudicate (i.e., one that the parties consented to
submit to arbitration). More specifically, in order for a claim to be arbitrable, the parties must have
entered into an agreement to arbitrate and that agreement must be valid and cover the dispute in
question. If asserted by or against a non-signatory, the applicable law must allow that party, on the
basis of some theory, to be treated as if it were a signatory. See George A. Bermann, Arbitrability
Trouble, 23 Am. Rev. Int'l Arb. 367 (2012). The term arbitrability in the U.S. thus has a markedly
wider scope than it does elsewhere. In common parlance, matters of arbitrability go by the name of
" gateway " issues. See also George A. Bermann, The Gateway Problem in International Commercial
Arbitration, 37 Yale J. Int'l L. 1, 29-36 (2012).
126. NextEra Energy, supra note 122, pp. 12-13 (explanatory footnote added (supra note 125),
not in original).
127. Id. p. 21.
128. Id. p. 22.
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